Public monitor could aid green laws

The draft law should enhance the role of the public, social and vocational organisations in supervising and protecting the environment. Koos Neefjes, climate change policy advisor for the United Nations Development Programme in Vietnam explains what changes the law offers.

The draft revised Law on Environmental Protection fails to clarify how people, and social and professional organisations can perform their rights and obligations in supervising and protecting the environment. What do you think about this issue?

The majority of observers agree that enforcement of the present Law on Environmental Protection (LEP) is one of the biggest challenges for Vietnam and that will also be the case for the revised law. Since the adoption of the current LEP in 2005, the country established the environmental police which was a major improvement. But it is important that the eyes and ears of ordinary citizens are mobilised to support the enforcement of the LEP.

In Vietnam there is a very important political slogan related to grassroots democracy, ‘the people know, the people discuss, the people do, and the people monitor’. I believe that this should apply fully to the whole LEP, but currently that is only partly the case. The draft LEP primarily defines obligations of certain authorities to consult with communities, for example in articles 15 and 16 on environmental impact assessment. But ordinary people and community groups should be given the right to be informed, discuss, monitor and conduct environmental performance assessments of small and large companies, including state owned enterprises.

In the current draft revised LEP, there are several references to information and consultation. And the essence of the slogan is captured in Chapter XIV (Articles 131, 132 and 133), where the rights and obligations of social-political and professional organisations are defined. These are membership organisations and they are important intermediaries. Article 133 defines the rights and obligations of residential communities.

However, Chapter XIV is very general. It is for example not clear whether a commune or a district unit of a mass organisation can act on its own, or whether it can only act at a central level. It is also unclear what constitutes a residential community. Does that mean any citizen, an informal group or club, or is it limited to commune authorities and the organised neighbourhoods or hamlets inside urban or rural communes? The articles in Chapter XIV also do not make a clear link to policy instruments such as environmental impact assessments or strategic environmental assessments, and the rights of social-political and professional organisations, individuals or groups to information and participate at different stages in the implementation of these instruments.

Greater involvement of the public and social-political organisations could strengthen environmental protection

So how should the role of the people and professional organisations in supervising and protecting the environment be featured in the new LEP?

In Vietnam it is at the moment very difficult for local or central mass organisations, citizens groups or researchers to get hold of draft environmental impact assessment reports or those that have been approved. These reports should normally contain agreed measures to minimise or mitigate negative environmental impacts, and in for example the case of hydro-electric dams it should include resettlement plans. If having access to those reports would be explicitly stated as their right, the project owners must make them available on request or publish them on websites, so that local groups can monitor whether the agreed actions are actually taking place. The amended LEP could give them this right, and enable them to know better, discuss better, and monitor better.

So in other words, I think that the draft LEP can become clearer on the rights of individuals as well as informal community groups, and the rights and obligations of social-political and professional organisations can be defined more specifically. A law tends to be very general and detail has to go into sub-laws (regulations), but the LEP can become more precise in explaining for example the rights to specific categories of information; rights to consultation of specific citizens groups in certain stages of policy instruments such as during the environmental impact assessment; and rights of environmental monitoring of specific categories of investment projects and business establishments.

Like the existing LEP, the draft revised LEP also stipulates that people are entitled to sue polluters. How can we ensure that it will be more effectively implemented, because over recent years, despite many pollution cases, only a handful of lawsuits against polluters have been seen?

I think the draft revised LEP is a bit stronger in this regard than the existing legislation, but it can still become clearer and more precise. Article 4.5 and Article 158 in Chapter XVIII on compensation for environmental damage, express what is known as the ‘polluter pays principle’. Articles 154, 155 and 156 lay out what kind of environmental damage this concerns, and in broad terms who would be responsible for assessing environmental damage.

However, it seems that it will be very difficult for individual households to do such an assessment and then use that for a successful claim, especially if they are relatively poor, busy and have limited legal and scientific education. In other words, only if community groups and social-political and professional organisations have human and financial resources, and they are willing to help local residents in the legal process of assessing and evaluating damages and pursuing lawsuits could you expect successful compensation claims. The current draft LEP does not stipulate any financial or other support to local groups and local social-political and professional organisations, but I think a legal assistance facility would be needed to realistically expect an increase in lawsuits and a real application of the ‘polluter pays principle’.

What kind of other regulations should the new LEP include to benefit the environment, the government, enterprises and the public, when they are applied?

Many of the  responsibilities for authorities at a central and provincial level are already stipulated in the draft LEP. However I am somewhat surprised that there is no reference to the environmental police, so I assume that its duties are covered in another law or regulation. But there are two issues I would suggest the LEP could reconsider, which would be the need for increased clarity and possibly some additional articles.

Environmental protection activities are specified in dedicated articles for many specific categories, including trade and services, craft villages and traffic, mineral exploration, industrial parks and hospitals. However, some business categories which have a considerable environmental impact do not seem to be included in the same specific way, including large scale businesses that are not in industrial parks such as paper mills, sugar processing plants, and metal and fertiliser plants. They are perhaps subsumed under the very general Article 46 on “Environmental protection for business production premises and service areas” but I think they deserve explicit consideration. Furthermore, power plants that use coal and other fossil fuels; hydropower plants with major environmental impacts and risks; and petrochemical operations including petroleum and gas exploration are also not mentioned specifically but in my view that could strengthen the LEP.

Secondly, the draft LEP tries to be more specific on climate change related rights and obligations when compared to the existing LEP. However, it does not yet clearly and comprehensively articulate the policies that Vietnam already has on climate change adaptation and greenhouse gas emissions mitigation, including Vietnam’s agreed actions under international treaties such as reporting to the UN Framework Convention on Climate Change. In several places it confuses adaptation to climate change and mitigation of emissions, which are quite distinct climate change responses. For example, it would be more useful if the title of Chapter III and Articles 26 would be about “responding to climate change” instead of “adaptation to climate change” as it currently says, because both adaptation and mitigation should be considered in environmental protection, energy production, sustainable consumption and production, and social-economic planning, which are the main subjects of Articles in that chapter.

But, as I explained before, the draft amended LEP is already a step forward from the existing LEP in several ways. I hope that further discussions and editing will make it a very effective law!